South Dakota leads fight with government over regulation of streams, smaller waterways

WASHINGTON — Landlocked South Dakota is again fighting with the federal government about water — this time over whether the Obama administration can regulate streams and smaller waterways.

The state's Republican lawmakers on Thursday criticized a proposal that would allow the Environmental Protection Agency to regulate seasonal and rain-dependent streams and wetlands near rivers and streams while other ponds and streams would be considered on a case-by-case basis to determine if they play a significant role in the quality of downstream waters.

Rep. Kristi Noem and Sen. John Thune both say the EPA's plan, which is tied to the Clean Water Act, would diminish states' influence and potentially have significant economic effects. Sen. Tim Johnson, D-S.D., has not weighed in on the proposal.

"We urge you to change course by committing to operating under the limits established by Congress, recognizing the states' primary role in regulating and protecting their streams, ponds, wetlands and other bodies of water," a letter signed by Noem, Thune and other federal lawmakers read this week. Farm lobbying groups, including the American Farm Bureau Federation, have also criticized the EPA's proposal.

For South Dakota, the push to stop the EPA rule merely renews accusations of federal overreach.

In recent months, members of the state's congressional delegation have waged a separate battle with the Army Corps of Engineers over a proposal to restrict some state residents' access to the Missouri River and charging people who use water from the river's reservoirs in South Dakota, North Dakota and Montana.

South Dakota lawmakers have instead pushed a provision in a water projects bill currently being negotiated by Congress that would expressly forbid the Corps from doing that.

Then, as now with the EPA, the state's lawmakers are complaining that the federal government is unnecessarily meddling.

"This adds a layer of government on land that's never had that before," Noem said. "Like the Army Corps' plan, it's another instance of the government trying to say they have the ability to do something they don't have the ability to do."

The Clean Water Act allows the EPA to regulate "U.S. waters," but what that entails has long been disputed. U.S. Supreme Court cases in 2001 and 2006 curbed some of the government's authority but didn't decide its role in smaller waterways.

The EPA has argued the change is necessary to maintain safe drinking water and that it has farmers and states' best interests at heart. In an opinion piece for Huffington Post announcing the proposed rule in late March, EPA Administrator Gina McCarthy wrote that the rule won't broaden the EPA's regulations, but clarify its work.

"Without Clean Water Act protections — there's often nothing stopping sewage, toxic chemicals, or some other worst-case water scenario from threatening our health and livelihoods," she wrote.

Opponents of the proposed rule change, including Noem and Thune, argue the change is a definite expansion of federal authority, that any regulations on smaller bodies of water should fall under the purview of states and that instituting federal regulations will have harmful effects.

Noem said the rule could potentially give the EPA authority over what she called "prairie potholes" — small patches of water far away from navigable rivers and lakes.

Thune said in a statement that the proposal would have "real consequences for South Dakota property owners."

"Direct and indirect costs would result from additional permit application expenses, mitigation requirements, and environmental analysis," he said, "and violating these requirements could cost farmers, ranchers, homeowners, and businesses thousands of dollars per day."

The EPA is accepting public comments on the proposed changes through mid-July.